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1-1-2016 Why the Right Embraced Logan Sawyer Associate Professor of Law University of Georgia School of Law, [email protected]

Repository Citation Logan E. Sawyer III, Why the Right Embraced Rights , 40 Harv. J. L. & Pub. Pol'y 729 (2016), Available at: https://digitalcommons.law.uga.edu/fac_artchop/1230

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BOOK REVIEW

WHY THE RIGHT EMBRACED RIGHTS

THE OTHER RIGHTS REVOLUTION: CONSERVATIVE LAWYERS AND THE REMAKING OF AMERICAN GOVERNMENT. JEFFERSON DECKER. OXFORD UNIVERSITY PRESS (2016)

LOGAN E. SAWYER, III*

INTRODUCTION

Justice Scalia’s untimely death prompted an outpouring of popular and academic comment on his remarkable contribu‐ tions, both to the law and to the conservative movement in American politics. Newspaper obituaries, magazines, and spe‐ cial editions of scholarly journals analyzed the ’s contri‐ bution to reshaping theories of constitutional and statutory in‐ terpretation, changing central doctrines of constitutional law, and altering norms of Supreme Court oral advocacy and opin‐ ion writing.1 They also regularly emphasized how both his votes and his voice helped advance conservative causes.2

* Associate Professor of Law, University of Georgia School of Law. Thanks to Chris Schmidt and Laura Phillips Sawyer for comments on earlier drafts. 1. See, e.g., Robert Barnes, Supreme Court Justice dies at 79, WASH. POST (Feb. 13, 2016), https://www.washingtonpost.com/politics/supreme‐court‐ justice‐antonin‐scalia‐dies‐at‐79/2016/02/13/effe8184‐a62f‐11e3‐a5fa‐55f0c77bf39c_ story.html [https://perma.cc/E576‐A7WW]; Adam Liptak, Justice Scalia, Who Led Court’s Conservative Renaissance, Dies At 79, N.Y. TIMES, Feb. 14, 2016, at A1; Jona‐ than H. Adler, The Passing of a Legal Giant—Antonin Scalia, R.I.P., WASH. POST: VOLOKH CONSPIRACY (Feb. 13, 2016), https://www.washingtonpost.com/news/ volokh‐conspiracy/wp/2016/02/13/the‐passing‐of‐a‐legal‐giant‐antonin‐scalia‐rip [https://perma.cc/7GTC‐8UX6]; Jack Balkin, Antonin Scalia, Rest in Peace, BALKINIZATION (Feb. 13, 2016, 6:01 PM), http://balkin.blogspot.com/2016/02/ antonin‐scalia‐rest‐in‐peace.html, [https://perma.cc/N8YP‐5Z66]; David Cole, Scal‐ ia: The Constitution in Politics, N.Y. REV. BOOKS: NYR DAILY (Feb. 15, 2016), http://www.nybooks.com/daily/2016/02/15/justice ‐antonin‐scalia‐constitution‐in‐ politics [https://perma.cc/N2G6‐288L]. 2. See Barnes, supra note 1; Liptak, supra note 1; Adler, supra note 1; Balkin, supra note 1; Cole, supra note 1. 730 Harvard Journal of Law & Public Policy [Vol. 40

That recognition is undoubtedly deserved, but the credit—or blame, depending on one’s perspective—ought to be shared, as the Justice himself undoubtedly would have recognized.3 As a Supreme Court Justice, Scalia’s voice and vote had considerable influence on American law and politics.4 But, like all judges, that influence depended on the opportunity to hear new arguments and decide new cases. And many of the arguments and cases most important to Scalia’s legacy were produced by a loose but effective network of conservative litigators, lower court judges, law clerks, and academics.5 Consider that v. Lopez,6 Citizens United v. FEC,7 District of Columbia v. Heller,8 and NIFB v. Sebelius9 were all cases supported by conservative public interest law firms that deployed arguments developed by academics as‐ sociated with Society.10

3. See, e.g., Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 SUFFOLK U. L. REV. 881, 882 (1983) (noting that the Court can make no ruling “when there are no adverse parties with personal interest in the matter” who bring the case before it). 4. For just a few of his seminal works, see, for example, ANTONIN SCALIA, A MATTER OF INTERPRETATION (1997); Antonin Scalia, : The Lesser Evil, 57 U. CINN. L. REV. 849 (1989); Antonin Scalia, The as a Law of Rules, 56 U. CHI. L. REV. 1175 (1989). 5. For the assertion that such “support structures” are required in order to allow a court to focus attention on a particular set of issues, see Charles R. Epp, The Sup‐ port Structure as a Necessary Condition for Sustained Judicial Attention to Rights: A Response, 73 J. POL. 406 (2011). For a description of the workings of the modern American conservative support structure, see AMANDA HOLLIS‐BRUSKY, IDEAS WITH CONSEQUENCES: THE AND THE CONSERVATIVE COUN‐ TERREVOLUTION (2015). 6. 514 U.S. 549 (1995); see also HOLLIS‐BRUSKY, supra note 5, at 108 (noting that “Federalist Society participant” Carter Phillips litigated this case). 7. 558 U.S. 310 (2010); see also HOLLIS‐BRUSKY, supra note 5, at 82–83 (noting that one member of the three‐judge District Court panel, the appellate counsel for Citi‐ zens United, and thirteen separate amici curiae for this case were all members of the Federalist Society). 8. 554 U.S. 570 (2008); see also HOLLIS‐BRUSKY, supra note 5, at 45 (noting that in this case, “[s]ix‐time Federalist Society National Conference presenter Judge Lau‐ rence Silberman wrote the Circuit Court decision,” “three of the lawyers involved in masterminding the litigation strategy . . . ha[d] active ties to the Federalist Soci‐ ety network,” and “an impressive 21 members of the Federalist Society network signed on to eight different briefs . . . .”). 9. 567 U.S. 519 (2012); see also HOLLIS‐BRUSKY, supra note 5, at 135–136 (noting that eight of the litigators and twenty‐four of the amici curiae in this case were members of the Federal Society network). 10. See, e.g., HOLLIS‐BRUSKY, supra note 5, at 46–48.

No. 3] The Other Rights Revolution 731

Remarkably, when Scalia entered public service in 1971,11 that network of conservative lawyers did not exist. At that time, public interest law firms were nearly universally dedicat‐ ed to advancing liberal or progressive policies.12 There was no Federalist Society.13 Many of the ideas that are today associated with the conservative movement—like and originalism—had no meaningful support in legal academia.14 By 2015, however, the landscape had been transformed. A re‐ markable array of public interest law firms pursued conserva‐ tive goals, including the Pacific Legal Foundation, the Capital Legal Foundation, and the Institute for Justice, to name only a few.15 In fact, by the 1990s, conservative public interest firms were filing more Supreme Court amicus briefs than their liberal and progressive counterparts.16 The academy was different as well. With the support of the Olin Foundation and other con‐ servative nonprofit groups, it became common for scholars to use economic analysis to justify conservative policy goals.17 Ac‐ ademics with similar support used textualist and originalist

11. Though he did not completely leave academia until 1974, Scalia began serv‐ ing as General Counsel for the Office of Telecommunications Policy in 1971. See Brian P. Smentkowski, Scalia, Antonin, in BRITANNICA BIOGRAPHIES (2012). 12. See STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW 23, 267 (2008) (noting that “liberal public interest law exploded in the early 1970s” and that “for almost twenty years con‐ servative public interest law was treated as an oxymoron”). 13. See id. at 138 (noting that the Federalist Society was founded in 1982). 14. See JOHNATHAN O’NEILL, ORIGINALISM IN AMERICAN LAW AND POLITICS 5, 10 (2005) (noting that originalism has been “present in American constitutional law and thought since the country’s founding, but by the 1930s its conceptions of constitutional authority and legitimate interpretation had been marginalized” and would not again “set the terms of the jurisprudential debate” until the 1980s); TELES, supra note 12, at 307 n.1 (noting that the academy was “nonreceptive” to law and economics “from the 1930s to the 1960s”). 15. For an argument that firms with a conservative agenda can still be “public interest” organizations, see Ann Southworth, Conservative Lawyers and the Meaning of “Public Interest Law”, 52 UCLA L. REV. 1223 (2005). 16. See Ann Southworth, What is Public Interest Law: Empirical Perspectives on an Old Question, 62 DEPAUL L. REV. 493, 506 fig. 1 (2013). 17. See TELES, supra note 12, at 182 (noting that the Olin Foundation promoted law and economics because Olin saw it was “a crack in the liberal legal net‐ work, a beachhead for conservatives otherwise locked out of the elite legal acad‐ emy” and that this discipline owes much of the credit for its becoming a “domi‐ nant presence in legal academia” to the “strategic patronage” of organizations like the Olin Foundation).

732 Harvard Journal of Law & Public Policy [Vol. 40

arguments to the same effect.18 All of those efforts were loosely coordinated by a network of conservative lawyers centered primarily, but not exclusively, on the Federalist Society.19 In multiple high profile cases, including those listed above, Fed‐ eralist Society academics generated theories that were present‐ ed in court by Federalist Society litigators, analyzed by Federal‐ ist Society law clerks, and adopted by Federalist Society judges and .20 By 2005, that network had developed enough political muscle to sink President Bush’s nomination of to the Supreme Court and help push one of its own, Jus‐ tice Alito, onto the Court.21 This network, commonly called the conservative legal movement, has recently received the sustained attention of scholars in a variety of fields. Political scientists,22 historians,23 and academic lawyers24 have sought to explain how this net‐ work has advanced conservative policies in the law so success‐ fully. Jefferson Decker’s The Other Rights Revolution: Conserva‐ tive Lawyers and the Remaking of American Government25 makes an original and important contribution to this literature by ask‐ ing a new question. Rather than asking how a relatively small number of lawyers helped conservatives alter legal and consti‐ tutional norms, as have most scholars, he asked how the consti‐ tutional and legal norms developed by that network went on to alter the political ideology of conservatives.

18. See Erin Cady, The John M. Olin Fellowships and the Advancement of Conserva‐ tivism in Legal Academia, 39 HARV. J.L. & PUB. POL’Y 917 (2016). 19. See HOLLIS‐BRUSKY, supra note 5, at 9–10. Hollis‐Brusky observes that the Federalist Society is not a public interest law firm, an interest group, or a , but is instead a network that “educate[s] and train[s] its members through sponsored events and conferences, to shape and socialize them intellectually and professionally in a particular way, and to encourage them to draw on this training as they carry out their work as legal professionals, academics, judges, government officials, and civic leaders,” and “[t]here are thousands of ‘untold ways’ in which these individuals go on to shape legal doctrine and policy in accord with organi‐ zational principles and priorities.” Id.; see also Southworth, supra note 15; South‐ worth, supra note 16. 20. See supra notes 6–9 and accompanying text. 21. See JAN CRAWFORD GREENBURG, SUPREME CONFLICT 282–84 (2007) (noting that a “conservative revolt” sabotaged Bush’s nomination of Miers). 22. See, e.g., HOLLIS‐BRUSKY, supra note 5; TELES, supra note 12. 23. See, e.g., O’NEILL, supra note 14. 24. See, e.g., Southworth, supra note 15; Southworth, supra note 16. 25. JEFFERSON DECKER, THE OTHER RIGHTS REVOLUTION: CONSERVATIVE LAW‐ YERS AND THE REMAKING OF AMERICAN GOVERNMENT (2016).

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Conservatives in the 1970s and 80s, Decker argues, believed in the effective use of government authority when exercised by democratically elected branches, but were dubious about judi‐ cial policy‐making. In particular, they opposed the legal and constitutional “rights revolution” that allowed liberal and pro‐ gressive public interest lawyers to push courts to extend judi‐ cial authority over contested social and economic issues.26 Things are different today. Conservative lawyers, politicians, activists, and voters have made “rights talk” and an associated suspicion of government authority core tenants of contempo‐ rary conservatism.27 Decker’s most striking claim is that this transition was led by lawyers. He thus suggests that the recent scholarship on the conservative legal movement may have missed its most important impact: its redefinition of what it means to be conservative. Decker makes this claim as a historian. That is, he emphasiz‐ es attention to archival evidence and narrative coherence over theory and commentary. But Scalia’s passing invites us to con‐ sider how his insights might be both generalized and extended. This review turns to those questions after it summarizes Deck‐ er’s arguments in Section I. Section II identifies some of the lim‐ its of his argument, and places his claims in context of our ex‐ isting understanding of the conservative legal movement. Sec‐ Section III supports Decker’s insight by explaining how legal arguments can alter not just what political movements think is possible, but what they think is desirable. To elucidate that ex‐ planation, Section III examines how the contemporary con‐ servative movement has been shaped by the legal campaign against the .28 Through their efforts, con‐ servative lawyers transformed the debate over the ACA from one that emphasized policy consequences to one that empha‐ sized liberty and individual rights. By doing so, they both in‐ spired and legitimated the , which, in turn helped transform the contemporary Republican Party. Section IV asserts that it is not just Decker’s argument, but his broader approach that ought to be extended. By tying Decker’s work to a broader set of studies it calls for more attention to the role

26. Id. at 2–5. 27. Id. at 3–5. 28. Id. at 211–13.

734 Harvard Journal of Law & Public Policy [Vol. 40

that lawyers have played in defining and re‐defining conserva‐ tism. That greater focus on the influence of lawyers is particu‐ larly needed today, as convulsions in contemporary politics offer new opportunities to define conservatism for the next generation. Lawyers need to know how much influence they have had in the past so they can recognize how many respon‐ sibilities they have in the present.

I. THE OTHER RIGHTS REVOLUTION

Decker organizes his argument as historical narrative. After an introduction outlining his argument, he turns to the origins of the contemporary network of conservative public interest law firms. Those firms were not started, as one might expect today, to enlist the judiciary in the fight against excessive gov‐ ernment regulation. Rather, they hoped to do the opposite: to free government from such legal entanglements. Business leaders and other conservatives were concerned that the aggressive enforcement of new rights by liberal and progressive lawyers was interfering with orderly, democratic government. Their concern grew from the explosion of new rights of actions created by Lyndon Johnson’s Great Society programs,29 which combined with looser standing rules30 and the explosion of fee shifting statutes to encourage liberal and progressive public interest lawyers and law firms31—including consumer advocates like and environmental or‐ ganizations like the Sierra Club—to bring suit against the gov‐ ernment in hopes of advancing their preferred policies.32 Conservatives in general, and the business community in particular, responded by funding and organizing their own lawyers to fight back. Future Supreme Court Justice Lewis Powell, acting as a consultant for the Chamber of Commerce, urged business leaders to learn from the success of liberal pub‐ lic interest litigation. “Other organizations and groups have been far more astute in exploiting judicial action than Ameri‐

29. Id. at 17–25. 30. Id. at 31–32. 31. Id. at 32–33. 32. Id. at 13–15, 25–30.

No. 3] The Other Rights Revolution 735

can business,” he wrote.33 This was, Powell wrote, “a vast area of opportunity for the Chamber.”34 The result of those efforts was the early conservative public interest firms, like the Pacific Legal Foundation and the Moun‐ tain States Legal Foundation, which looked for opportunities to defend government authority from interference from the liberal legal network. As the President of the PLF complained to his board of directors in 1973: “Faced with the dilemma of counter‐ ing numerous lawsuits for temporary restraining orders, in‐ junctions and damages, public attorneys have become hope‐ lessly outmanned.”35 Without an effective conservative legal counter‐mobilization, he continued, “governmental functions may well be without adequate defense.”36 Decker then turns to the lawyers who formed that counter‐ mobilization and the lessons they drew from their experiences, first in the American West, and then in the Reagan Administra‐ tion. At a time when most political and legal conservatives were calling for judicial deference that would help re‐establish “law and order” and protect the interests of the “silent majori‐ ty,” those conservative public interest firms, working primarily in the West, began to see how courts, litigation, and rights claims could advance conservative interests.37 The Pacific Legal Foundation, for example, quickly learned it could use the tools liberal public interest lawyers had developed to protect proper‐ ty owners.38 It used the same environmental statutes that it had formerly opposed, for instance, as a way to slow or stop expen‐ sive government infrastructure projects.39 Property rights and litigation surrounding the Takings Clause, they also found, could be useful.40 Similar developments occurred in Colorado, where Lewis Powell’s memorandum to the Chamber of Commerce inspired

33. Id. at 45 (quoting Memorandum from Lewis F. Powell to Eugene B. Snydor, Jr., Chairman, Educ. Comm., U.S. Chamber of Commerce (Aug. 23, 1971), https://law2.wlu.edu/deptimages/Powell%20Archives/PowellMemorandumTypes cript.pdf [https://perma.cc/8ATY‐572C] [hereinafter Powell Memo]). 34. Id. (quoting Powell Memo, supra note 33). 35. Id. at 1. 36. Id. 37. Id. at 55–57. 38. Id. at 61. 39. Id. at 61–63. 40. Id. at 63–71.

736 Harvard Journal of Law & Public Policy [Vol. 40

beer magnate Joseph Coors to create the Mountain States Legal Foundation.41 Mountain States developed a version of conserv‐ atism heavily influenced by the concerns of the West, where the federal government was the largest landowner. It sought to protect Western businesses from the excesses of the growing environmental movement.42 By the end of the decade, this campaign led Mountain States’s controversial leader James Watt to proudly call himself an activist who used the court‐ room as a tool to protect individual rights. “It is there,” he told an audience at the University of Wyoming, “that I practice my profession as a public‐interest lawyer championing individual rights and economic freedom.”43 That turn to rights claims and litigation, however, did not fit easily with the dominant conservative view of the courts in the 1970s, which still strongly opposed “.”44 Con‐ servative public interest lawyers originally papered over the con‐ flict by arguing that the rights revolution they were pursuing dif‐ fered from its liberal counterpart because it advanced the interests of a silent majority of Americans, rather than special interests.45 These lawyers argued they were thus fighting for the same goal as the supporters of judicial deference: majoritarian democracy.46 These arguments were unconvincing to some conservatives,47 but they were enough to allow conservative public interest firms to retain their alliances with conservative political interests while they slowly expanded their campaigns for judicial protection of individual rights.48 The Great Plains Legal Foundation and the Washington Legal Foundation’s attention to matters of religious liberty in the 1970s, particularly under the Free Exercise Clause, were important new extensions.49 The lawyers that made up the conservative legal movement abandoned that uneasy compromise in response to a surprising cause: the Reagan Revolution. Hopeful that Reagan’s election

41. Id. at 74. 42. Id. at 75, 79–80. 43. Id. at 92. 44. Id. at 96–97. 45. Id. at 97–104, 114. 46. Id. at 97. 47. Id. at 109–111, 121. 48. Id. at 121–22. 49. Id. at 104–106.

No. 3] The Other Rights Revolution 737

would allow them to advance conservative policies, many members of these firms eagerly took positions in the admin‐ istration, some that were quite important.50 Leading members of conservative public interest law firms became the Secretary of the Interior51 and the Solicitor General,52 and others took im‐ portant White House posts. They hoped to use their new au‐ thority to increase cooperation between business and govern‐ ment by, for example, opening more federal lands to mining and drilling,53 and by undermining the government programs and statutes that funded a large portion of liberal public inter‐ est litigation.54 But Democratic strength in the House of Repre‐ sentatives, astute political maneuvering by members of the lib‐ eral legal network, missteps by conservative leaders, and conflict between lawyers from the conservative public interest firms and more traditional conservatives limited their accom‐ plishments.55 Efforts to cap attorneys’ fees in fee‐shifting suits failed in Congress,56 for example, and litigation by the Sierra Club and other liberal litigation firms slowed the opening of western lands until after the Reagan’s term ended.57 The opportunities presented by the Reagan Administration did not end litigation by the public interest right, but it did cur‐ tail and narrow it in ways that pushed its lawyers even closer to a full embrace of individual rights.58 Reagan’s victory lured talented lawyers from conservative public interest firms into the administration and turned donors’ attention from litigation to more traditional methods of shaping public policy.59 With fewer resources, the public interest right narrowed its agenda. Its only real successes were in lawsuits that used rights based claims to call on judicial protection for property interests. The highest profile example produced Justice Scalia’s 1987 majority opinion in Nollan v. Coastal Commission,60 which pro‐

50. Id. at 124–25. 51. Id. at 126. 52. Id. at 147. 53. Id. at 128. 54. Id. at 138–47. 55. Id. at 152. 56. Id. at 143–46. 57. Id. at 131–38. 58. Id. at 154–55. 59. Id. at 153–54. 60. 483 U.S. 825 (1987).

738 Harvard Journal of Law & Public Policy [Vol. 40

tected private property by expanding the category of regulato‐ ry takings.61 Those successes further encouraged conservative lawyers to see rights and courts as an important way to ad‐ vance conservative policies.62 Those lessons combined with continued frustrations in Reagan’s second term to push conservative public interest law‐ yers to fully embrace the turn from traditional politics to courts and rights. Here, Decker focuses on what conservative attorneys inside the Reagan administration learned from efforts to expand takings . Former Mountain States Legal Founda‐ tion attorneys, for example, hoped to support the efforts of pri‐ vate litigants to expand the reach of the Takings Clause in both Nollan and in First English Evangelical Lutheran Church v. County of Los Angeles,63 where they saw an opportunity to establish that landowners should be compensated for regulatory takings even if such takings were temporary.64 But moderates within the ad‐ ministration provided mixed support. Solicitor General opposed compensation for temporary regulatory takings so strenuously that the administration declined to fully support the argument at the Supreme Court.65 When the Court ruled in favor of compensation for temporary regulatory takings any‐ way, the lesson for many conservative lawyers was clear: rights arguments and courts could advance their interests more effec‐ tively than traditional politics.66 As a result, leading members of the conservative public in‐ terest network fully embraced a new rights‐ and court‐based strategy for political change, a strategy that was close to, if not identical to, the approach conservative public interest firms were created to challenge. A particularly poignant example— which also demonstrates Decker’s careful archival research—is the handwritten notes Decker found scrawled on a copy of the Slaughter‐House Cases67 by Clint Bolick, later a founder of the Institute for Justice, but at the time a lawyer in the Civil Rights

61. DECKER, supra note 25, at 174–82. 62. Id. at 181–82. 63. 482 U.S. 304 (1987). 64. DECKER, supra note 25, at 191–94. 65. Id. at 194–95. 66. Id. at 195–97. 67. 83 U.S. 36 (1873).

No. 3] The Other Rights Revolution 739

Division at the Department of Justice.68 Those notes anticipate Bolick and I.J.’s litigation campaign to re‐establish judicial pro‐ tection for economic liberty69 and help confirm the transition Bolick and other conservative lawyers made between the 1970s and the 1990s. A network of lawyers that was created to free government from meddling lawyers, judges, and individual rights claims had come to embrace those tools as the defining characteristic of their movement.70 Decker’s suggestive epilogue connects these changes to con‐ temporary politics. He traces links between the history of the conservative legal movement and the embrace of rights claims, rights talk, and judicial power by political conservatives. He points to Kelo v. City of New London,71 the political backlash it created,72 the challenges to the Affordable Care Act,73 and other examples. By embracing rights talk and judicial action, Decker argues, the conservative legal movement helped make ques‐ tions of regulatory policy deeply, and unnecessarily, ideologi‐ cal issues.74 Our political debate, he indicates, could emphasize policy rather than rights, and practical implications rather than political ideology.75 That it does not, he argues, demonstrates the remarkable influence of lawyers and legal argument on twenty‐first century American politics.

II. THE OTHER RIGHTS REVOLUTION AND THE CONSERVATIVE LEGAL MOVEMENT

This is an important story, well told. It explains how a set of lawyers organized to free government from legal entanglements came to dedicate themselves to creating very similar kinds of entanglements. In doing so, Decker recognizes that this transi‐ tion was not easy, even if it seems a pragmatic choice in retro‐ spect. He confirms previous work by Steve Teles and others when he shows conservative lawyers embraced rights claims

68. DECKER, supra note 25, at 202–09. 69. Id. at 208–09. 70. Id. at 210. 71. 545 U.S. 469 (2005). 72. DECKER, supra note 25, at 215–20. 73. Id. at 211–13. 74. Id. at 220–24. 75. Id. at 223–27.

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and judicial authority to achieve particular policy goals.76 But, Decker also recognizes that he has described not just a tactical shift, but an transformation. His study, he writes, is of an “intellectual revolution and the legal activism that inspired it.”77 In that context, his emphasis on the lessons conservative lawyers learned from the West and the Reagan Administration is an important insight. Those twin experiences provided the raw materials conservative lawyers used to generate a new con‐ servative approach to governing, an approach that is more fo‐ cused on first principles and individual rights, more welcoming of judicial action, less concerned with legislative compromise, and that has helped produced our deeply ideological contempo‐ rary disputes over the regulatory state. But more important than identifying those raw materials is Decker’s claim that this ideological vision radiated out from those lawyers to the define the modern conservative move‐ ment. In the last half of the twentieth century, being conserva‐ tive meant opposing rights claims and interference with effec‐ tive government. Consider the position of conservatives on Roe v. Wade,78 Miranda v. Arizona,79 and Brown v. Board of Education,80 or their approach to prayer in public schools, judicially‐ enforced busing to achieve racial integration in schools, and the extension of civil and voting rights acts. In each area, conserva‐ tives opposed judicial interference with policy‐making by more democratic bodies. Conservatives embraced originalism in the 1980s because it encouraged judicial deference to the elected branches of government.81 Even in the 1990s, conservatives op‐ posed the health care reform led by not because it interfered with individual rights or violated constitutional norms, but for policy reasons. In the early twenty‐first century, however, conservatism has changed. The conservative chal‐ lenge to the Affordable Care Act in court and outside it focused

76. See ERWIN CHEMERINSKY, THE CONSERVATIVE ASSAULT ON THE CONSTITU‐ TION (2010); MARK W. SMITH, DISROBED: THE NEW BATTLE PLAN TO BREAK THE LEFT’S STRANGLEHOLD ON THE COURTS (2006); ANN SOUTHWORTH, LAWYERS OF THE RIGHT: PROFESSIONALIZING THE (2008); TELES, su‐ pra note 12. 77. DECKER, supra, note 25, at 9. 78. 410 U.S. 113 (1973). 79. 384 U.S. 436 (1966). 80. 347 U.S. 483 (1954). 81. O’NEILL, supra note 14.

No. 3] The Other Rights Revolution 741

on constitutional and individual rights. Conservatives celebrat‐ ed the decision in Hobby Lobby and rebelled when rights claims failed in Kelo.82 Leading advocates of originalism now call for “judicial engagement” rather than “judicial deference.”83 Scholars have recognized that there are disagreements be‐ tween the conservative legal movement and the broader con‐ servative movement.84 But Decker pushes farther. He claims that conservative lawyers have been more than a tool of con‐ servative interests, they have been leaders in defining conserv‐ atism.85 With this claim, Decker turns our understanding of the conservative legal movement on its head. Before Decker, schol‐ ars looked to the conservative legal movement with one core question: how did conservative political interests build a net‐ work of lawyers that so successfully altered legal and constitu‐ tional norms?86 Decker urges us to consider also how that net‐ work has shaped the larger conservative movement. This is an important contribution, but no book is perfect, and this one, too, has weaknesses. One is that Decker’s investiga‐ tion heavily emphasizes the libertarian‐leaning wing of the conservative legal movement. The first half of his book, for ex‐ ample, focuses on Lewis Powell’s 1971 memorandum to the Chamber of Commerce, the Pacific Legal Foundation, and the Mountain States Legal Foundation.87 Each of those organiza‐ tions were primarily concerned with economic policy. They hoped to counter declining trust in the , the growth of the regulatory state, and the expansion of environmental

82. Hillel Y. Levin, Rethinking Religious Minorities’ Political Power, 48 U.C. DAVIS L. REV. 1617, 1677 (2015); Ilya Somin, The Limits of Backlash: Assessing the Political Response to Kelo, 93 MINN. L. REV. 2100, 2109–11 (2009). 83. Randy E. Barnett, The Wages of Crying , 36 HARV. J.L. & PUB. POL’Y 925, 930–31 (2013). 84. SMITH, supra note 76, at 234; TELES, supra note 12, at 221; William E. Nelson et al., The Liberal of the Supreme Court Clerkship: Its Rise, Fall, and Reincar‐ nation?, 62 VAND. L. REV. 1749, 1772 n.79 (2009). It has also been disputed. See, e.g., Reva Siegel & Robert Post, Originalism as Political Practice: The Right’s Living Con‐ stitution, 75 FORDHAM L. REV. 545 (2006) (arguing that originalism as practiced by conservative judges connects them with, and helps mobilize, the broader con‐ servative political movement). 85. SMITH supra note 76, at 10–15; TELES supra note 12, at 221. 86. HOLLIS‐BRUSKY, supra note 5; TELES, supra note 12; Comment, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 HARV. L. REV. 191, 201–36 (2008). 87. DECKER, supra note 25, at 39–94.

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regulation. They were undoubtedly important to the birth of the public interest right,88 and continue to have considerable influence on the movement.89 But they are not the only con‐ servative lawyers. Gun rights advocates have achieved re‐ markable success and visibility in District of Columbia v. Heller90 and McDonald v. Chicago.91 Lawyers associated with the Chris‐ tian Right in the 1990s spent millions of dollars, employed hundreds of lawyers, and aggressively filed myriad lawsuits and amicus briefs.92 In the end, Decker may be correct that lawyers concerned with economic liberty have had the greatest impact the right’s embrace of rights, but the issue is not without doubt.93 To pro‐ vide a confident answer, we need to know more about how re‐ ligious conservatives shifted from opposing judicial power in school prayer decisions and Roe v. Wade to embracing judicial action in Hobby Lobby, and what effect that shift had.94 We also need to know more about the links between Second Amend‐ ment activism, the Republican Party, and the litigation cam‐ paign that led to Heller.95 Decker has made a prima facie case, but more work needs to be done. A second weakness in Decker’s work is that its most creative insight is its least well documented. The Other Rights Revolution demonstrates the importance of the West and the Reagan Admin‐ istration with a careful, largely continuous narrative of people, ideas, politics, and policy, but its claims about the spread of this new conservatism from lawyers to politicians are primarily made in his epilogue, which jumps forward from the late 1980s to well into the twenty‐first century. There, Decker argues NFIB and Kelo demonstrate that the contemporary conservative movement has followed the public interest right into an embrace of rights claims.96 That shift undoubtedly occurred, but Decker does not

88. TELES, supra note 12, at 7–11. 89. Id. at 211–12, 225–27 90. 554 U.S. 570 (2008). 91. 561 U.S. 742 (2010). 92. STEVEN P. BROWN, TRUMPING RELIGION: THE NEW , THE FREE SPEECH CLAUSE, AND THE COURTS 5–10 (2002). 93. DECKER, supra note 25, at 5. 94. Compare Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), with Roe v. Wade, 410 U.S. 113 (1973), and Engel v. Vitale, 370 U.S. 421 (1962). 95. 544 U.S. 570 (2008). 96. DECKER, supra note 25, at 211–27.

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explain how legal arguments can shape political debate or trace the shift of rights talk from conservative lawyers to mainstream conservative discourse. Some readers may thus rush too quickly past what is potentially his most important contribution.

III. FROM CONSERVATIVE LAWYERS TO CONSERVATIVE POLITICS

Any reader tempted to do so should resist, because there are good reasons to believe Decker got it right. True to his histori‐ cal training, Decker does not provide a generalized theory to explain how legal activism can shape a political movement. But social scientists have catalogued a variety of ways that the law—and the lawyers who are experts at manipulating it—can influence the political and social movements they ostensibly serve.97 Litigation, those social scientists have noted, can shape political debate by attracting public attention.98 Roe v. Wade transformed the political debate over abortion, for example.99 Litigation can also inspire political action when it convinces activists that change is possible.100 Brown v. Board of Education was surely unnecessary to convince African Americans that the Jim Crow regime was unjust.101 But that victory showed change was possible, which helped inspire protests that forced Con‐ gress to pass the 1964 Civil Rights Act and other critical civil rights legislation.102 Litigation and legal argument can also le‐ gitimate a political movement and its claims.103 Court victories make it harder for opponents to dismiss calls for change. And even without litigation, legal arguments made by the right

97. Michael McCann, Law and Social Movements, in THE BLACKWELL COMPANION TO LAW AND SOCIETY 506, 510–11 (Austin Sarat ed. 2004). 98. Id. at 515–16. 99. Reva B. Siegel, Before (and After) Roe v. Wade: New Questions About Backlash, 120 YALE L.J. 2028 (2011); Mary Ziegler, The Possibility of Compromise: Antiabortion Moderates After Roe v. Wade, 1973–1980, 87 CHI.‐KENT L. REV. 571 (2012). 100. See Michael McCann, Law and Social Movements, in THE BLACKWELL COM‐ PANION TO LAW AND SOCIETY, supra note 97, at 506. 101. MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS: THE SUPREME COURT AND THE STRUGGLE FOR RACIAL EQUALITY 363–84 (2004); GERALD N. ROS‐ ENBERG, HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 64–65 (2008). 102. See Michael McCann, Law and Social Movements, in THE BLACKWELL COM‐ PANION TO LAW AND SOCIETY, supra note 97, at 506. 103. Id. at 513–15.

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people can legitimate political claims.104 When law professors from prestigious universities or other legal leaders support a claim, it becomes more difficult to dismiss.105 Ken Kersch has pointed out another way law can shape politi‐ cal movements. Politics, he notes, is not a simple exercise of split‐ ting the difference between conflicting interests or picking a win‐ ner when compromise is impossible.106 Which compromises are arranged and which winners are chosen depends on the relative power of the political coalitions that take part in the negotiations. And creating an effective political coalition out of a diffuse set of interests is no easy matter, particularly in a complex and layered political system like the United States. Political entrepreneurs try to solve these problems with institutional structures like political parties and congressional caucuses, but political ideology is also an effective tool. Political ideology can produce and protect effec‐ tive coalitions by making some alliances seem natural and others illegitimate. Before the 1980s, the alliance between white Southern conservatives and the other parts of the Democratic coalition seemed a natural alliance. By the 1990s, it no longer seemed so. Intellectual entrepreneurs, who reformulated various strands of the American political tradition, caused that change.107 One of the most important resources for that kind of ideology building, Kersch points out, was constitutional argument.108 The conserva‐ tive lawyers Decker examines have influenced politics in all these ways: they have won litigation victories that have generated at‐ tention, inspired political action, legitimated their policy goals, and provided an ideological framework that has helped produce and maintain a new conservative coalition. Consider the vignette that opens Decker’s epilogue, the litigation campaign against the Affordable Care Act, and the emergence, spread, and impact of

104. JACK M. BALKIN, CONSTITUTIONAL REDEMPTION: POLITICAL FAITH IN AN UNJUST WORLD 181 (2011) 105. Id. at 178; GARRET EPPS, AMERICAN EPIC: READING THE U.S. CONSTITUTION (2013); TELES, supra note 12. 106. Ken I. Kersch, The Talking Cure: How Constitutional Argument Drives Consti‐ tutional Development, 94 B.U. L. REV. 1083 (2014). 107. Id. at 1091. 108. Id. at 1090–92; see also Victoria Hattam & Joseph Lowndes, The Ground Be‐ neath Our Feet: Language, Culture, and Political Change, in FORMATIVE ACTS: AMERI‐ CAN POLITICS IN THE MAKING 199 (Stephen Skowronek & Matthew Glassmen eds., 2007).

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what became known as the “broccoli horrible.”109 The broccoli horrible highlighted concerns that the ACA marked a sharp break with a longstanding American political tradition that valued indi‐ vidual liberty by suggesting that a government that could man‐ date the purchase of health could also require private individuals to purchase healthy, green vegetables.110 That hypo‐ thetical provides a case study of the influence of the conservative legal movement on contemporary conservatism. It originated with lawyers associated with the conservative legal movement, spread to supporters of the Tea Party, was adopted by judges at the urging of conservative lawyers and academics, legitimated and inspired the Tea Party, and ultimately helped reform con‐ temporary conservative politics.111 Diet‐based hypotheticals were first used to critique healthcare reform by Federalist Society expert David B. Rivkin in an attack on President Clinton’s proposals.112 Rivkin revived those arguments in 2009 to attack the constitutionality of the ACA.113 The hypothetical was then refined by Terence Jeffrey, the editor of a conservative news outlet, who focused it on broccoli.114 It was then picked up by Reason TV, part of a con‐ servative public interest organization that has received large donations from the David H. Koch Charitable Foundation and the Sarah Scaife Foundation. Reason TV saw the opportunity to spread their libertarian perspective. “Part of the idea for Rea‐ son is we’re ideological and we’re trying to articulate and pop‐ ularize our worldview and have some influence,” said a

109. James B. Stewart, How Broccoli Landed on Supreme Court Menu, N.Y. TIMES, (June 13, 2012), http://www.nytimes.com/2012/06/14/business/how‐broccoli‐ became‐a‐symbol‐in‐the‐health‐care‐debate.html [https://perma.cc/4PND‐T63N]. 110. Christopher Schmidt & Mark Rosen, Why Broccoli? Limiting Principles and Popular Constitutionalism in the Health Care Case, 61 UCLA L. REV. 66 (2013); see also Ilya Somin, A Mandate for Mandates: Is the Individual Case a Slippery Slope? 75 L. & CONTEMP. PROBS. 75 (2012). 111. Schmidt & Rosen, supra note 110, at 114; Adam Gopnik, “The Broccoli Horri‐ ble”: A Culinary‐Legal Dissent, NEW YORKER (June 28, 2012), http://www.newyorker.com/news/news‐desk/the‐broccoli‐horrible‐a‐culinary‐ legal‐dissent [https://perma.cc/VC3S‐YPDW]. 112. David B. Rivkin Jr., Health Care Reform v. the Founders, WALL ST. J., Sept. 29, 1993, at A19, quoted in Schmidt & Rosen, supra note 110, at 101. 113. See infra notes 123–24. 114. Stewart, supra note 109; Terence P. Jeffrey, Can Obama and Congress Order You to Buy Broccoli?, CNS NEWS (Oct. 21, 2009, 4:43 AM), http://www.cnsnews. com/blog/terence ‐p‐jeffrey/can‐obama‐and‐congress‐order‐you‐buy‐broccoli [https://perma.cc/XL3B‐8CNW].

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spokesman.115 Their video featured Professor John Eastman, another expert for of the Federalist Society, criticizing the con‐ stitutionality of the law.116 That video resonated with conservative voters, and particu‐ larly Tea Party activists, but it remained largely within those circles until Judge Roger Vinson of the Northern District of Florida mentioned the hypothetical in his 2011 opinion invali‐ dating the law. His opinion, called by some a “Tea Party Mani‐ festo,”117 emphasized that the hypothetical was “not an irrele‐ vant and fanciful ‘parade of horribles,’” but was rather a matter of “serious concern[]” that was being “debated by legal schol‐ ars.”118 , Ilya Somin, and other prominent aca‐ demics associated with the Federalist Society continued to de‐ fend the broccoli hypothetical in public and professional publications.119 Soon thereafter, the hypothetical “‘quickly be‐ came the defining symbol for the debate,’” wrote Chris Schmidt, a leading expert on the Tea Party and its constitution‐ al arguments.120 “The image of government forcing individuals to purchase, and perhaps even eat, their vegetables,” he ar‐ gued, “served as a politically and culturally resonant way in

115. ReasonTV, Wheat, Weed, and ObamaCare: How the Made Congress All‐Powerful, YOUTUBE (Aug. 25, 2010), https://www.youtube.com/ watch?v= 6SDf5_Thqsk&feature=youtu.be [https://perma.cc/7H6L ‐SPJB]. 116. Stewart, supra note 109; ReasonTV, supra note 115. 117. Mark Hall, Judge Vinson’s Tea Party Manifesto, CONCURRING OPINIONS (Jan. 31, 2011), https://concurringopinions.com/archives/2011/01/judge‐vinsons‐tea‐ party‐manifesto.html [https://perma.cc/3GK5‐PY26]; see also Timothy Jost, Analyz‐ ing Judge Vinson’s Opinion Invalidating the ACA, HEALTH AFFS. BLOG (Feb. 1, 2011), http://healthaffairs.org/blog/2011/02/01/analyzing‐judge‐vinsons‐opinion‐ invalidating‐the‐aca [https://perma.cc/VY73‐TWWW] (“This is a radical decision. Judge Vinson has a clear vision of the limited federal government the founders intended that is very much in line with that espoused by the Tea Party Move‐ ment.”). Judge Vinson specifically mentioned the broccoli hypothetical, Florida ex rel. Bondi v. U.S. Dep’t of Health & Human Servs., 780 F. Supp. 2d 1256, 1289 (N.D. Fla. 2011), the first time a court had embraced the so‐called broccoli horrible, see Schmidt & Rosen, supra note 110, at 106. 118. Bondi, 780 F. Supp. 2d at 1289. 119. Randy E. Barnett, Congress Has No Power to Mandate Purchases, BOS. GLOBE (Apr. 3, 2011), http://archive.boston.com/bostonglobe/editorial_opinion/oped/ articles/2011/04/03/congress_has_no_power_to_mandate_purchases/?page=full [https://perma.cc/2V7P‐JYPE]; Ilya Somin, Why the Individual Health Care Mandate is Unconstitutional, JURIST (May 4, 2011, 8:00 AM), http://www.jurist.org/forum/ 2011/05/ilya‐somin‐mandate‐is‐unconstitutional.php [https://perma.cc/Q5E9‐ 5NDA]. See generally Somin, supra note 109. 120. Schmidt & Rosen, supra note 110, at 109 (quoting Stewart, supra note 109).

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which to ensure that concerns with personal liberty remained at the forefront of the debate.”121 It helped “convince broad swaths of the American public, in breathtakingly short order, that the law’s posed a fundamental assault on personal liberty.”122 The broccoli horrible’s journey from conservative lawyers to conservative politics exemplifies both the influence of the con‐ servative legal movement over the litigation against the ACA and the impact of that litigation on contemporary conservative poli‐ tics. The lawsuits against the ACA were conceived, executed, and supported by members of the conservative legal movement. The constitutional argument against the bill originated with David Rivkin and Lee Casey, who are both experts for the Federalist So‐ ciety and served in important legal roles in Republican admin‐ istrations.123 They wrote editorials in and in the fall of 2009, months before the bill passed, criticizing the bill on constitutional grounds.124 Soon after, leading academics associated with the conservative movement began to debate the constitutionality of the bill and craft legal arguments against it.125 By December, those arguments were sufficiently de‐ veloped for law professors Ilya Somin and Jonathan Adler to de‐ ny Senator Max Baucus’s claim that there was a consensus among experts that the ACA was constitutional.126 By the time the bill

121. Id. at 114. 122. Id. 123. See David B. Rivkin Jr., FEDERALIST SOC’Y, http://www.fed‐ soc.org/experts/detail/david‐b‐rivkin‐jr [https://perma.cc/K9BL‐GEBP] (last ac‐ cessed May 19, 2017); Lee A. Casey, FEDERALIST SOC’Y, http://www.fed‐ soc.org/experts/detail/lee‐a‐casey [https://perma.cc/ 2B8W ‐DNMY] (last accessed May 19, 2017). 124. See David B. Rivkin, Jr. & Lee A. Casey, Illegal Health Reform, WASH. POST, Aug. 22, 2009, at A15; David B. Rivkin, Jr. & Lee A. Casey, Mandatory Insurance is Unconstitutional, WALL ST. J., Sept. 18, 2009, at A23. 125. See Randy Barnett, Healthcare: Is “Mandatory Insurance” Unconstitutional?, POLITICO (Sept. 18, 2009), http://www.politico.com/arena/perm/Randy_Barnett_ 8256A4EF‐01E6‐4207‐B4E8‐C761F2FDB5BF.html [https://perma.cc/2QAL‐87V3]; Stephen B. Presser, Law Prof.: Expect SCOTUS to Kill Obamacare, (Oct. 5, 2011), http://www.newsmax.com/US/SCOTUS‐Obamacare‐unconstitutional‐ mandate/2011/10/05/id/413429 [https://perma.cc/6PTK‐LKQ2]. 126. Jonathan H. Adler, The Constitutionality of an Individual Mandate: A Reply to Senator Baucus, VOLOKH CONSPIRACY (Dec. 23, 2009), reprinted in A CONSPIRACY AGAINST OBAMACARE: THE VOLOKH CONSPIRACY AND THE HEALTH CARE CASE 20 (Trevon Burrus ed., 2013); Ilya Somin, The Myth of an Expert Consensus on the Con‐ stitutionality of an Individual Health Insurance Mandate, VOLOKH CONSPIRACY (Dec. 23, 2009), reprinted in A CONSPIRACY AGAINST OBAMACARE, supra, at 22. For post‐

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was ready for the President’s signature, those arguments were strong enough for the Attorneys General from Florida, , and to pledge to bring a constitutional challenge to the bill.127 Some of the same conservative lawyers who helped gener‐ ate the arguments against the law, including Randy Barnett, Ilya Somin, and David Rivkin, then took part in litigation which was much more successful than many expected. By October of 2010, two district court judges had denied mo‐ tions to dismiss those constitutional challenges,128 one of which would reach the Supreme Court as NFIB v. Sebelius.129 There, Rivkin, Somin, Barnett, and others associated with the Federalist Society and the conservative legal network partic‐ ipated in drafting briefs for the parties and amici.130 That first suit, of course, upheld the law,131 but legal challenges con‐ tinued, again supported by lawyers associated with the Fed‐ eralist Society and the conservative legal movement. That litigation both inspired Tea Party activists and legiti‐ mated the Tea Party for mainstream conservatives. The litiga‐ tion against the ACA and the support it received from respect‐ ed academic commentators were constant companions to the Tea Party, as it grew from a small, grass‐roots protest move‐

enactment analysis of the ACA’s constitutionality, see Ilya Somin, Why The Health Care Reform Law is Unconstitutional, CNN (Mar. 26, 2012, 3:56 PM), http://www.cnn.com/2012/03/26/opinion/somin‐health‐supremes [https://perma. cc/M8FW ‐VX2P]. 127. See Randy E. Barnett, Is Health‐Care Reform Constitutional?, WASH. POST (Mar. 21, 2010), http://www.washingtonpost.com/wp‐dyn/content/article/2010/03/ 19/AR2010031901470.html [https://perma.cc/7ZUA‐R7JA]. 128. See Florida ex rel. McCollum v. U.S. Dep’t of Health & Human Servs., 716 F. Supp. 2d 1120 (N. D. Fla. 2010) (Vinson, J.); Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598 (E.D. Va. 2010) (Hudson, J.). 129. Florida ex rel. Bondi v. U.S. Dep’t of Health & Human Servs., 780 F. Supp. 2d 1256 (N.D. Fla. 2011), order clarified, 780 F. Supp. 2d 1307 (N.D. Fla. 2011), and aff’d in part, rev’d in part sub nom. Florida ex rel. Att’y Gen. v. U.S. Dep’t of Health & Human Servs., 648 F.3d 1235 (11th Cir. 2011), aff’d in part, rev’d in part sub nom. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012). 130. Brief of the Washington Legal Foundation and Constitutional Law Scholars as Amici Curiae in Support of Respondents (Individual Mandate Issue), U.S. Dep’t of Health & Human Servs. v. Florida, 567 U.S. 519 (2012) (No. 11‐398), 2012 WL 1680857; Brief for Private Respondents on the Individual Mandate, U.S. Dep’t of Health & Human Servs. v. Florida, 567 U.S. 519 (2012) (No. 11‐398), 2012 WL 379586; Reply Brief for State Petitioners On Severability, NFIB, 567 U.S. 519 (2012) (Nos. 11‐393 & 11‐400) 2012 WL 888995. 131. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012).

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ment to an important and institutionalized part of the Republi‐ can Party. To be sure, the Tea Party emerged before the ACA passed,132 but the contest over the law’s constitutionality was a central concern of the Tea Party. A core motivating story for Tea Party members was Speaker Nancy Pelosi’s dismissal of a question about the constitutionality of the act.133 Her response, “Are you serious? Are you serious?” was woven into a Tea Par‐ ty narrative, along with an assumption that the legislation was clearly unconstitutional134 and that President Obama had a par‐ ticular irreverence for the Constitution.135 “Of the many issues around which the Tea Party has mobilized,” Chris Schmidt wrote, “none has been so effective a rallying cry as opposition to the health care law that President Obama signed into law.”136 As the litigation continued, the Tea Party’s claim that the ACA was unconstitutional came to be embraced by main‐ stream Republicans. When the bill was being considered in Congress, policy arguments were the core ground of opposi‐ tion.137 Congress held forty‐four hearings on the ACA, none of which were aimed at its constitutionality.138 But by the time the President was preparing to sign the bill, the GOP had begun to embrace what had been a fringe argument. Since its passage, opposition to the ACA on constitutional grounds has been a core Republican committment. Not only did the GOP‐led house vote more than 50 times to eliminate or mortally damage the law,139 “Repeal and Replace” is currently a top legislative priority of both the current President and the Republican Party more broadly.140 Throughout this period of intense opposition,

132. See generally Christopher W. Schmidt, The Tea Party and the Constitution, 39 HASTINGS CONST. L.Q. 193 (2011). 133. Id. at 233–34. 134. THEDA SKOCPOL & VANESSA WILLIAMSON, THE TEA PARTY AND THE RE‐ MAKING OF REPUBLICAN CONSERVATISM 61 (2012). 135. Id. at 52–53. 136. Schmidt, supra note 132, at 237. 137. Id. 138. Neal Devins, Party Polarization and Judicial Review: Lessons from the Affordable Care Act, 106 NW. U. L. REV. 1821, 1828 (2012). 139. Jennifer Steinhauer, House Bill Undoing Health Law Makes It To Obama, N.Y. TIMES (Jan. 7, 2016), https://www.nytimes.com/2016/01/07/us/politics/house‐votes‐ to‐send‐bill‐to‐repeal‐health‐law‐to‐obamas‐desk.html?_r=0 [https://perma.cc/ M3MU ‐PEVU]. 140. See, e.g., Thomas Kaplan & Robert Pear, House Passes Measure to Repeal and Replace the Affordable Care Act, N.Y. TIMES (May 4, 2017), https://www. nytimes.

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constitutional arguments have been cited regularly by GOP leaders as grounds for opposition.141 The Party’s response to the outcome in NFIB is further evidence of the Party’s embrace of those constitutional arguments.142 By legitimating the Tea Party and its arguments to the larger GOP, the lawsuits against the ACA have helped reshape the party itself. The Tea Party originated as a fringe grassroots movement, but quickly came to transform the contemporary GOP. The Tea Party began with a call by a CNBC television reporter for a series of protests to oppose bailouts of the auto and banking industries, the economic stimulus bill, and other efforts to stem the tide of the recession.143 That call led to a large rally in Washington, D.C., in September of 2009, by which time the grassroots organizations had won the support of con‐ servative media sources like ,144 and major conserva‐ tive public policy organizations, including FreedomWorks and Americans for Prosperity, hoped the Tea Party would advance their agenda of and lower taxes.145 Togeth‐ er, that network aimed to push the Republican Party in a more conservative direction through electoral mobilization and legis‐ lative action. They were especially active in the 2010 elec‐ tions,146 for example, and the Congressional Tea Party Caucus has worked hard to push their colleagues to the right.147 These actions helped bring the GOP back to power and pushed it to the right. When the Tea Party arose, the Republi‐ can Party was in a poor position. Following ’s com/2017/05/04/us/politics/health ‐care‐bill‐vote.html [https://perma.cc/ZPX3‐ 4AHQ]. 141. Jesse J. Holland & Mark Sherman, Supreme Court Will Hear Health Care Case, MPR NEWS (Nov. 14, 2011), http://www.mprnews.org/story/2011/11/14/supreme‐ court‐health‐care‐case [https://perma.cc/7W2Q‐WUA9]. 142. See Rachel Roubein & Caitlin Owens, How the Obamacare Decision Reinforces the GOP’s 2016 Calculus, ATLANTIC (June 25, 2015), https://www.theatlantic.com/ politics/archive/2015/06/how‐the‐obamacare‐decision‐reinforces‐the‐gops‐2016‐ calculus/452058 [https://perma.cc/B8HG‐SCWA]. 143. See SKOCPOL & WILLIAMSON, supra note 134, at 156. 144. Id. at 8. 145. Id. at 9–10. 146. Schmidt, supra note 132, at 227–28. 147. SKOCPOL & WILLIAMSON, supra note 134, at 9. The in the House is the primary group responsible for pushing forward what once were identified as Tea Party issues. Katy O’Donnell, The Right Recalibrates, ROLL CALL (Mar. 9, 2015, 6:15 AM), http://www.rollcall.com/news/The‐Right‐Recalibrates‐ 240566‐1.html [https://perma.cc/65PN‐U5RL].

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election in 2008, Democratic control of both houses of Congress and the presidency had led pundits to ask if there would be a permanent Democratic majority.148 The Republican Party’s brand was heavily tainted. The President’s stimulus plan pro‐ duced some opposition by Republicans, but this opposition was hardly an effective long‐term tool to rebuild the party. Tea Party conservatism, however, provided a “perfect rallying point,” wrote Tea Party experts Theda Skocpol and Vanessa Williamson.149 Following its warm embrace of the Tea Party movement, the GOP had roared back to life. In the 2010 elec‐ tion, it took 63 seats in the House and six seats in the Senate.150 Although it is unclear how much those electoral victories were driven by Tea Party supporters going to the polls, or by Tea Party endorsements of particular candidates,151 the movement, at the very least, provided a marketing opportunity for con‐ servatives that neither President Bush nor Senator John McCain could provide. As Skocpol and Williamson wrote, “tea parties and their adoring media surely helped to re‐inspire grassroots conservatives, set a national agenda for the election, and claim a Republican wave election as a vindication for a particular, extreme conservative ideology.”152 Those electoral victories were not immediately followed by further victories in 2012, but Tea Party organizations continue to have important influence. Their efforts may have cost the Republican Party seats in 2012 by producing the nominations of Christine O’Donnell in Delaware, Sharron Angle in Nevada, and Ken Buck in Colorado.153 But those nominations pushed Republican politicians rightward to ward off primary challeng‐ es by more conservative candidates. The Freedom Caucus, which is heavily influenced by the network of voters, donors,

148. Nate Cohn, The ‘Emerging Democratic Majority’ Isn’t Assured—Unless the GOP Refuses to Change, NEW REPUBLIC (Apr. 10, 2013), https://newrepublic.com/ article/112870/emerging‐democratic‐majority‐isnt‐certainty‐gop‐change [https:// perma.cc/67LU‐RYTT]. 149. SKOCPOL & WILLIAMSON, supra note 134, at 7. 150. Steve Peoples, Final House Race Decided; GOP Net Gain: 63 Seats, ROLL CALL (Dec. 8, 2010, 4:05 AM), http://www.rollcall.com/news/‐201279‐1.html [https:// perma.cc/ML4N‐HKYR]; Barack Obama: Campaigns and Elections, MILLER CTR., https://millercenter.org/president/obama/campaigns ‐and‐elections [https://per ‐ ma.cc/ Q8K6 ‐R592] (last accessed May 19, 2017). 151. SKOCPOL & WILLIAMSON, supra note 134, at 159. 152. Id. at 163. 153. Id. at 167.

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and public policy organizations that were brought together by the Tea Party, has also pushed the Republican House and Sen‐ ate leadership to the right.154 Although it is hard to know with certainty, there do seem to be important continuities between the Tea Party movement and the campaign of the current Pres‐ ident. Certainly, the tone of the Tea Party, their deep suspicion of President Obama, their opposition to immigration, and even their calls to “take our country back” echoed in his campaign.155 The Tea Party name has fallen out of favor, but the movement has had an important influence on American politics.156 That influence was, in important ways, possible because of the conservative legal movement.157 Lawyers closely associated with the conservative legal movement helped produce and ex‐ ecute the lawsuits against the ACA. That lawsuit generated hope among Tea Party advocates that change was possible and helped legitimate not just legal arguments but an approach to governing that had begun as off‐the‐wall claims of a fringe po‐ litical movement. When the lawsuit found success in the courts, first at the district court level,158 then at the circuit court,159 then at the Supreme Court,160 both the legal arguments and that ap‐ proach to governing gained even broader appeal, ultimately reshaping the GOP. Without David Rivkin, Randy Barnett, Ilya Somin, and others, the contemporary conservative movement and recent political history would have been quite different.

IV. BEYOND RIGHTS ON THE RIGHT

Turning the history of the conservative legal movement on its head by showing that lawyers in the conservative legal movement

154. O’Donnell, supra note 147. 155. See SKOCPOL & WILLIAMSON, supra note 134, at 209, 216; Elizabeth A. Yates, How the Tea Party Learned to Love , WASH. POST (Dec. 1, 2016), https://www.washingtonpost.com/news/monkey‐cage/wp/2016/12/01/how‐the‐ tea‐party‐learned‐to‐love‐donald‐trump/?utm_term=.25fe710cd880 [https://perma. cc/ RRE9 ‐7VZ9]. 156. SKOCPOL & WILLIAMSON, supra note 134, at 208. 157. DECKER, supra note 25, at 211–17. 158. See Florida ex rel. Bondi v. U.S. Dep’t of Health & Human Servs., 780 F. Supp. 2d 1256, 1295 (N.D. Fla. 2011). 159. See Florida ex rel. Att’y Gen. v. U.S. Dep’t of Health & Human Servs., 648 F.3d 1235, 1285–86 (11th Cir. 2011). 160. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2607 (2012).

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not only responded to the larger conservative coalition, but also pushed it towards an approach to governing that emphasized rights claims and judicial action, is an important insight. This most arresting of Decker’s claims may not yet be fully proven, but it is full of promise, and not just because of how it contributes to our understanding of conservatives’ embrace of rights. Decker’s approach might also help revise our understanding of the con‐ servative movement as a whole. The best pathway towards that broader revision might combine Decker’s emphasis on the agency of lawyers with two other research projects: one which has eluci‐ dated how lawyers can leverage their legal expertise into political influence, and another which has considered how law and legal institutions have contributed to the emergence and success of the modern conservative movement. While Decker’s focus on the agency of conservative lawyers is new, he is not alone in arguing that law can shape, as well as re‐ spond to, political and social structures. Leading scholars have shown how litigation and legal argument has shaped liberal and progressive politics.161 More recently, some scholars have begun to argue that law and legal argument has provided resources to create and support the contemporary conservative coalition. One example is Ken Kersch’s claim that a common commitment to constitutionalism helped forge the post‐war conservative move‐ ment.162 The conservative movement was and remains an alliance between once scattered groups of traditionalists, libertarians, neo‐ conservatives, free‐marketers, religious voters, and anti‐ communist hawks.163 Those groups disagreed over fundamental issues like America’s proper role in the world, the state’s authori‐ ty to enforce , and a host of other questions.164 Such disa‐ greements did not, however, prevent them from forming a uni‐ fied movement in part, Kersch claims, because they all believed

161. See, e.g., TOMIKO BROWN‐NAGIN, COURAGE TO DISSENT: ATLANTA AND THE LONG HISTORY OF THE CIVIL RIGHTS MOVEMENT (2011); RISA GOLUBOFF, VAGRANT NATION (2016); KLARMAN, supra note 101; JOHN D. SKRENTNY, THE MINORITY RIGHTS REVOLUTION (2004). 162. See Ken I. Kersch, Beyond Originalism: Constitutional and Con‐ stitutional Redemption, 71 MD. L. REV. 229 (2011); Ken I. Kersch, Ecumenicalism Through Constitutionalism: The Discursive Development of Constitutional Conservatism in , 1955–1980, 25 STUD. AM. POL. DEV. 86 (2011). 163. See generally GEORGE H. NASH, THE CONSERVATIVE INTELLECTUAL MOVE‐ MENT IN AMERICA SINCE 1945 (2006). 164. Kersch, Ecumenicalism through Constitutionalism, supra note 162, at 89–93.

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the American constitutional tradition should play a central role in contemporary politics.165 They did not agree on the implications of that tradition, but their commitment to its central role in our politics helped a diverse group of interests and ideologies forged a powerful political movement.166 Reuel Schiller has shown how law paved the way for the rise of that conservative coalition by weakening its primary rival, the Democratic New Deal coalition. The law, Schiller argues, exacerbated divisions within two core parts of that coalition: African Americans and the labor movement.167 A wide variety of economic, institutional, and intellectual developments caused those divisions.168 But law, he insists, also was central.169 Schiller showed that the legal regime that protected the inter‐ ests of unions, labor law, and the regime that came to protect African Americans, employment law and other anti‐ discrimination law, were opposed in both ideology and institu‐ tional structure.170 While labor law was pluralist, majoritarian, and supportive of bureaucratic governance, anti‐discrimination law was anti‐majoritarian, critical of pluralism, and supportive of judicial involvement.171 As African Americans, frustrated by the failure of labor to include them and address their concerns, turned away from labor law, white workers grew increasing frustrated with what they saw as African Americans under‐ mining the strength of the labor movement.172 By exacerbating that conflict, law helped weaken the New Deal coalition in ways that opened the door for the rise of conservatism.173 Schiller, and Kersch do not deny the important impact of po‐ litical concerns on the law, but together with Decker, they show how legal arguments and ideas have shaped the growth and success of conservative movement. What Decker adds is an emphasis on the lawyers themselves. By focusing on the ways lawyers can parley that legal expertise into political influence

165. Id. at 87. 166. Id. at 87, 89–93. 167. REUEL SCHILLER, FORGING RIVALS: RACE, CLASS, LAW, AND THE COLLAPSE OF POSTWAR LIBERALISM (2015). 168. Id. at 3–4. 169. Id. at 3. 170. Id. 171. Id. at 7–8. 172. Id. at 9–12. 173. See id. at 11–12.

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outside the courts, Decker also builds on recent scholarship that has emphasized the influence lawyers have had on the emergence and development of the administrative state. Exemplary is Dan Ernst’s study of the central role lawyers played in shaping the modern administrative state at its origins.174 The United States has an administrative state that is both largely free of judicial intervention, he notes, but still heavily governed by legalistic processes and norms.175 It has that character, he claims, because lawyers inside the government generated political influ‐ ence by leveraging the practical reality that the administrative state needed approval from courts.176 Lawyers then used that in‐ fluence to create an administrative state that receives largely def‐ erential review from the judiciary, but which also follows a host of legalistic procedures and norms that lawyers themselves val‐ ued.177 Sophia Lee, Karen Tani, and others have applied similar insights to show how lawyers leveraged their constitutional ex‐ pertise into policy‐making authority within those agencies after their legitimacy was established.178 Decker’s work offers a model of how these different ap‐ proaches can be pulled together with our growing knowledge of the conservative legal movement to revise our understand‐ ing of the conservative movement more broadly. In helping us to see that lawyers can leverage their legal expertise into influ‐ ence over political parties and other political institutions whose configurations do much to determine the outcome of political contests, Decker’s work does not deny that political concerns influence the way lawyers develop and deploy legal argu‐ ments. But his work does suggest that conservative lawyers have had a special influence on American politics. Their agen‐ cy, like that of politically involved lawyers more broadly, justi‐ fies—even requires—the kind of careful attention Decker has paid to understanding why those lawyers have made the choices they made. If we are to understand how the modern

174. DANIEL R. ERNST, TOCQUEVILLE’S NIGHTMARE: THE ADMINISTRATIVE STATE EMERGES IN AMERICA, 1900–1940 (2016). 175. Id. at 5. 176. Id. at 5–6. 177. Id. at 5. 178. SOPHIA Z. LEE, THE WORKPLACE CONSTITUTION FROM THE NEW DEAL TO THE (2014); KAREN M. TANI, STATES OF DEPENDENCY: WELFARE, RIGHTS, AND AMERICAN GOVERNANCE, 1935–1972 (2016).

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conservative movement defined itself, achieved its successes, and found its limits, we need to understand its lawyers. There are myriad areas that could benefit from such an investi‐ gation. We could certainly benefit from applying Decker’s ap‐ proach to the relationship between gun rights advocates, Second Amendment litigation, and the modern Republican Party. Originalism, too, might benefit from being seen as more than an academic enterprise or a tool of conservative political actors.179 We might better understand the contemporary conservative move‐ ment if we consider how the Republican Party’s embrace of originalism has not only advanced their interests,180 but also shaped their goals. We know, for example, that many who are now conservatives were unwilling to fully embrace conservatism until it received the approval of Raoul Berger, Robert Bork, and other leading academics.181 We might consider whether a similar influence has been exercised by the conservative lawyers who have helped oversee originalism’s development.

V. CONCLUSION

NFIB v. Sebelius was grounded in structural federalism, King v. Burwell182 focused on technical questions of statutory interpreta‐ tion, and neither litigation succeeded in their primary goals. They nevertheless had an enormous impact on American politics. They produced a conservative critique of the Affordable Care Act in court, in Congress, in Tea Party rallies, and elsewhere that em‐ phasized the Affordable Care Act’s interference with the liberty of individual Americans and the necessity for judicial action to pro‐ tect that liberty. Ubiquitous broccoli horribles highlighted the cri‐ tique. That emphasis on individual rights and the need for an ac‐ tive judiciary surprised no one in a political and legal culture which had seen conservative lawyers, judges, and politicians fol‐ low similar scripts in the debates surrounding Kelo v. City of New

179. Logan E. Sawyer, III, Principle and Politics in the New History of Originalism, 57 AM. J. LEGAL HIST. (forthcoming 2017). 180. Post & Siegel, supra note 84. 181. O’NEILL, supra note 14; Kersch, Ecumenicalism through Constitutionalism, supra note 162. 182. 135 S. Ct. 2480 (2015).

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London,183 Citizens United v. FEC,184 District of Columbia v. Heller,185 and Burwell v. Hobby Lobby Stores, Inc.186 Jefferson Decker’s The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government first reminds us that not too long ago these conservative appeals to courts, litigation, and individual rights would have been surprising indeed.187 It then offers a striking and original explanation for the transformation. While most scholars have seen the loose network of conservative lawyers, academics, and judges con‐ nected mainly through the Federalist Society as a tool of con‐ servative political interests,188 Decker argues it was those con‐ servative lawyers who redefined conservatism for the twenty‐ first century. More than tools, the lawyers were leaders. Their experience in the American West and their frustrations with the Reagan administration pushed them to embrace a new un‐ derstanding of what it means to be a conservative, an under‐ standing that is now shared by the larger conservative move‐ ment and much of the Republican Party. As with any claim so original, Decker will hardly have the final word, but he has illuminated the vital role lawyers played in shaping the modern conservative movement. That insight is a significant contribution to an already sophisticated literature. It is also remarkably timely. His work should impress upon contemporary lawyers the significant opportunity they have to influence the nation’s political future. In doing so, it might also remind them of their corresponding duty to use that influence wisely. Given the convulsions conservatism is currently under‐ going—convulsions that have included challenges to long es‐ tablished political, legal, and constitutional norms—now is a particularly appropriate time for such a reminder.

183. 545 U.S. 469 (2005). 184. 558 U.S. 310 (2010). 185. 554 U.S. 570 (2008). 186. 134 S. Ct. 2751 (2014). 187. DECKER, supra note 25. 188. HOLLIS‐BRUSKY, supra note 5; TELES, supra note 12; Comment, supra note 86.

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